The debate over whether the Washington Redskins should change their name has gained national attention this year, but a legal battle over the team’s trademark has been playing out for more than two decades.

Under federal law, the U.S. government may refuse to register a trademark that disparages a “substantial composite” of a group. And for that very reason, the U.S. Patent and Trademark Office has refused to register a number of trademarks containing the word “Redskins”. The patent office, for example in 2011, shot down an application for “Redskins” computer software.

But the trademark office had a different view of things in the 1960s when the Redskins first trademarked their name.

The effort to cancel Redskins trademarks began in 1992 — months after the team won their last Superbowl — when a group of Native Americans led by Native American activist Suzan Harjo filed a petition with the trademark office.

In 1999, the Trademark Trial and Appeal Board ruled that the name was disparaging and should be changed, but the Redskins were able to overturn the decision in federal court. A U.S. district judge in 2003 found that the trademark office hadn’t explained why the Redskins mark was disparaging. The D.C. Circuit Court of Appeals in 2009 also sided with the Redskins, but for procedural reasons, concluding that the challengers had waited too long to make their complaint.

The trademark office is now considering the petition of a group of younger challengers, who weren’t alive when the Redskins first trademarked their name. The current petitioners are five Native Americans from different tribes who say they are offended by the team’s name. A decision by the trademark appeal board could come any day.

The Redskins says the term isn’t disparaging in the context of professional football.

“The record here is replete with factual evidence that Native Americans, including tribal chiefs and recognized leaders, react positively to ‘Redskins’ as used to denote the NFL’s professional football team from Washington, D.C.,” said Robert L. Raskopf, an attorney representing the Redskins, in a brief filed with the trademark office. Mr. Raskopf wasn’t immediately available for comment.

Under federal trademark law, what matters is how a term was perceived at the time of registration, notes law professor Barton Beebe, a trademark scholar at New York University. So the Redskins say it’s not enough for the challengers to show that the term is disparaging to people in 2013, but say they would have to show that it was widely seen as an offensive term decades ago.

A ruling by the patent board could still be appealed. If the trademark were cancelled, the Redskins would lose certain rights that come with a federal registration, such as a presumption of validity that makes it easier to pursue infringement challenges and the ability to stop goods bearing an infringed mark from crossing the border.

The Washington Redskins could still use the mark though. A trademark doesn’t have to be federally registered to be recognized. The team’s owners could still claim common-law rights to it.

That could set up an unusual court fight in state or federal court. An unregistered trademark may not have common-law protection if it goes against public policy. A deceptive trademark may be voided, for example.

Courts, historically, have denied such protection to offensive marks, according to Georgetown University law professor Rebecca Tushnet, a trademark expert who has followed the Redskins case. “But that hasn’t been tested for decades,” she said.

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The Law Blog covers the legal arena’s hot cases, emerging trends and big personalities. It’s brought to you by lead writer Jacob Gershman with contributions from across The Wall Street Journal’s staff. Jacob comes here after more than half a decade covering the bare-knuckle politics of New York State. His inside-the-room reporting left him steeped in legal and regulatory issues that continue to grab headlines.

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